No.. 


Fifteenth  District 


IN  THE  SUPREME  COURT 


SPRING  TERM,  1914 


M.  F.  TEETER,  Plaintiff 


vs. 


HORNER  MILITARY  SCHOOL,  Defendant 
FROM  CABARRUS 


BRIEF  OF 

MAXWELL  &  KEERANS,  AND  J.  W.  HUTCHINSON 
Attorneys  for  Defendant- Appellee 


;v.v- ..'■-"■■■■  ■■■::  ^.•■■'..^■>v;,'-o-i-...  ;  .->:'  -:.'--";,•  .-vy-,:-"-,--;  ..  ■■■■:U-   :.— :-'■ ,    ^ 


No Fifteenth  District 

In  the  Supreme  Court 


Spring  Term,  191 4 


M.  F.  Teeter,  Plaintiff 

vs. 

Horner  Military  School,  Defendant 


From  Cabarrus 


Brief  of  Maxwell  &  Keerans,  and  J.  W.  Hutchin- 
son, Attorneys  for  Defendant-Appellee. 


Statement 

This  is  an  action  brought  by  the  plaintiff  to  re- 
cover of  the  defendant  the  sum  of  $70.00,  for  money 
paid  defendant  for  tuition  of  his  son,  who  was  sent 
to,  and  expelled  from  the  school  before  the  end  of 
the  session.  Defendant  denied  his  right  to  recover, 
filed  a  counterclaim  for  $80.56,  and  alleged  that 
plaintiff  was  indebted  to  it  in  said  amount  for  bal- 
ance due  on  tuition,  etc.,  for  the  half-yearly  session 
of  its  school  (6).  The  plaintiff  sent  his  son  to  the 
school  in  the  early  part  of  September,  1913,  with- 
out making  inquiry  as  to  its  terms,  rules,  and  regu- 
lations. Within  a  few  days  after  the  boy  arrived, 
the  defendant,  in  accordance  with  its  terms  and 
rules,  sent  the  plaintiff  a  bill  for  its  half-yearly  ses- 
sion, amounting  to  $185.00.  The  plaintiff  prompt- 
ly sent  it  his  check  for  $90.00,  to  be  credited  on  ac- 
count.    There  was  no  agreement  that  payment  for 


the  balance  of  the  bill  should  be  extended  or  in- 
dulged (17).     Within  about  three  weeks  after  the 
boy  arrived  at  school,  he  was  expelled  for  unruly 
conduct  and  repeated  violation  of  the  school  rules 
(7-8-9-12-13-18-19).     The    plaintiff    then    brought 
his  action  to  recover  $70.00  as  a  refund  in  tuition, 
or  for  the  pro-rata  part  of  the  $90.00  which  he  had 
paid  on  the  bill  sent  him.     By  its  rule,  the  defend- 
ant only  received  pupils  for  the  half-yearly  session, 
accepted  the  boy  on  such  terms,  and  made  provis- 
ions and  arrangements  accordingly  (12).     By  its 
terms,  tuition,  etc.,  for  half-yearly  expenses  were  to 
be  paid  in  advance — due  on  entrance — and  this  was 
enforced  as  to  all  pupils  (11-14).     The  rules  also 
provided  that,  in  case  a  boy  was  dismissed,  there 
would  be  no  deduction  of  the  amount  paid  or  due 
(10).     This  boy  was  expelled,  after  being  warned 
by  the  principal,  for  repeated  violation  of  the  rules, 
in  accordance  with  the  usual  custom  of  the  school, 
and  in  the  same  manner  as  any  other  pupil  would 
have  been  expelled.     The  boy  smoked,  visited  when 
told  not  to  do  so,  left  his  room  when  required  to 
remain    therein    and    prepare    his    lessons,    threw 
things  in  the  Assembly  Hall,  raised  disturbances 
after  taps — halloing,  disobeyed  rules    of    arrest — 
civil  and  military,  received  more  demerits  for  un- 
ruly conduct  than  any  boy  in  the  school,  which,  at 
one  time,  amounted  to  200,  etc.     He  was  publicly 
reprimanded  by  Colonel  Horner,  the  principal,  at 
regular  roll-call,  and  was  told  that  he  would  be  ex- 
pelled if  he  did    not    improve    his    conduct,    and 
allowed  his  demerits  to  reach  100.   The  boy  paid  no 
attention  to  the  warning,  continued  to  violate  the 
rules,  and  finally  the  principal  regarded  his  contin- 
ued presence  in  the  school  as  demoralizing  to  the 


>2 


school,  and  expelled  him  (12-16-18-19).  While  the 
plaintiff  says  he  had  not  read  the  catalog  of  the 
school  when  he  sent  his  son  thereto,  yet  he  knew, 
or  had  cause  to  know,  that  half-yearly  payments 
were  required  in  advance.  In  January,  1913,  he 
first  sent  his  son  to  defendant  for  the  Spring  ses- 
sion, and  shortly  thereafter  the  defendant  sent  him 
a  bill  for  the  half-yearly  session,  in  advance.  The 
plaintiff  paid  this  bill  in  three  installments — not  by 
agreement,  but  through  the  mere  indulgence  and 
courtesy  of  defendant;  again,  he  sent  his  son  back  to 
defendant  in  the  Fall  of  1913,  and  was  also,  short- 
ly thereafter,  sent  a  bill  for  the  half-yearly  expen- 
ses of  the  sesison,  to  be  paid  in  advance.  He 
promptly  sent  his  check  for  $90.00,  as  a  payment  on 
said  account.  The  plaintiff  admits  that  when  he 
received  the  bill  for  the  half-yearly  expenses  and 
made  a  payment  thereon,  he  knew  the  money 
would  be  forfeited  on  expulsion  (7-8-9-14). 

The  rules  of  defendant  provided,  and  which  were 
inserted  in  its  catalog  and  Cadet  regulations — "We 
do  not  want  vicious  or  habitually  insubordinate 
boys  and  if  such  succeed  in  entering  they  will  be 
dismissed.  Applicants  are  received  with  express 
understanding  that  they  will  submit  to  our  author- 
ity in  every  respect.  A  boy  whose  conduct  is  hurt- 
ful to  the  scholarship  and  morals  of  his  associates 
will  be  expelled." 

"Any  cadet  who  shall  disobey  a  command  of  the 
principal  or  of  any  professor,  instructor,  or  other 
superior  officer,  or  behave  himself  in  a  refractory 
or  disrespectful  manner,  shall  be  expelled  or  other- 
wise punished"  (11-13). 

Several  thousand  of  defendant's  catalogs  were 
distributed,  and  defendant  mailed  plaintiff  a  copy  of 

3 


same  in  June — before  the  Fall  of  191 3  (12).  The 
plaintiff  admits  that  a  copy  of  same  may  have  come 
to  him  in  the  mail — that  he  may  have  looked  at  it, 
thought  it  was  an  old  circular,  and  destroyed  it,  but 
never  read  it  (9). 

Plaintiff  produced  no  evidence  whatever  that  the 
rules  and  regulations  were  unreasonable,  that  the 
boy  did  not  violate  same,  that  they  were  not  in- 
serted in  the  catalog  and  adhered  to  in  the  conduct 
of  the  school,  or  that  the  boy  was  improperly  ex- 
pelled. 

The  defendant  requested  the  Court,  at  the  close 
of  all  the  testimony,  to  charge  the  jury,  if  they  be- 
lieved the  evidence,  to  answer  the  issues  in  its  favor 

(20). 

His  Honor  charged  the  jury,  in  effect,  that  it  was 
immaterial  whether  plaintiff  saw  or  read  the  cata- 
log of  defendant;  that,  if  he  sent  his  boy  to  the 
school  without  informing  himself  as  to  the  terms 
and  regulations,  he  was  bound  by  such,  and  left  it 
to  the  jury  to  determine  whether  defendant,  in  ex- 
pelling the  boy,  was  actuated  by  malice,  vicious- 
ness,  or  any  other  purpose  than  the  enforcement  of 
its  rules  and  good  government  of  its  school  (23), 
The  jury  answered  the  issues  in  favor  of  the  plain- 
tiff. Thereupon,  the  defendant  moved  to  set  aside 
the  verdict,  the  Court  did  so  and  made  the  follow- 
ing order  therein  (24) :  "In  the  above-entitled 
cause,  the  jury  having  rendered  a  verdict  for  the 
plaintiff,  as  shown  by  the  issues  found,  and  the  de- 
fendant, through  its  counsel,  Messrs.  J.  W.  Keer- 
ans  and  John  W.  Hutchinson,  having  made  a  mo- 
tion to  set  aside  the  verdict  upon  the  following 
grounds : 

4 


"i.  That  the  Court  committed  an  error  in  re- 
fusing to  give  to  the  jury  their  sixth  prayer  for  in- 
struction, to  wit:  'That,  if  the  jury  believed  the 
evidence,  they  should  answer  the  first  issue  nothing, 
and  the  second  issue,  for  the  half-annual  charges 
for  board,  tuition,  etc.,  less  the  $90.00  paid  by  the 
plaintiff,  to  wit:  $80.56/ 

"2.  That  the  Court  committed  an  error  in  its 
charge  in  leaving  to  the  jury  to  determine,  whether 
or  not  there  was  malice  or  viciousness  on  the  part 
of  defendant,  and  whether  it  was  prompted  by  some 
other  purpose  than  the  enforcement  of  the  regula- 
tions and  good  government  of  the  school  in  expell- 
ing the  boy  of  the  plaintirT. 

"The  Court  being  of  opinion  (a)  that,  upon  the 
facts,  it  erred  in  refusing  to  give  to  the  jury  defend- 
ant's sixth  prayer  for  instruction,  as  above  set  forth, 
and  (b)  that  it  also  erred,  upon  the  evidence,  in 
leaving  it  to  the  jury  to  determine,  'whether  or  not 
there  was  malice  or  viciousness  on  the  part  of  de- 
fendant, and  whether  it  was  prompted  by  some 
other  purpose  than  the  enforcement  of  the  regula- 
tions and  good  government  of  the  school  in  expell- 
ing the  boy  of  the  plaintiff;  and  (c)  there  being  no 
evidence  as  to  what  were  the  rules  and  regulations 
of  the  defendant,  and  its  motives  for  expelling  the 
boy  of  the  plaintirT  for  violation  of  same,  other  than 
testified  to  by  the  defendant's  witnesses,  and  the 
catalog  and  cadet  regulations  of  the  defendant's 
school  introduced  by  defendant,  the  Court  is  of 
opinion,  upon  the  undisputed  facts,  that  said  rules 
and  regulations  were  reasonable,  and  that  the  de- 
fendant was  actuated  by  no  other  motive,  in  expell- 
ing the  boy  of  the  plaintiff,  than  the  enforcement  of 
the  regulations  and  good  government  of  the  school. 

5 


'Therefore,  as  a  matter  of  law,  the  verdict  of 
the  jury  is  hereby  set  aside,  and  a  new  trial  ordered; 
and  the  Clerk  will  enter  this  order  upon  the  minutes 
of  the  Court." 

Contentions 

The  plaintiff  contends : 

i.  That  the  defendant  has  no  right  to  charge 
him  tuition  for  more  than  the  time  his  boy  was  ac- 
tually in  the  school,  before  being  expelled,  and  as- 
serts a  right  to  recover  back  the  pro  rata  part  of  the 
$90.00,  which  had  been  paid  to  it  on  the  bill  for  the 
half-yearly  expenses  in  advance. 

2.  That  in  sending  his  son  to  defendant,  he  was 
not  bound  by  its  terms,  rules,  and  regulations,  be- 
cause he  did  not  see  fit  to  read  the  catalog  or  in- 
form himself  prior  to  sending  the  boy  to  the  school. 

The  defendant  contends: 

1.  That  plaintiff,  by  sending  his  boy  to  the 
school  without  taking  the  trouble  to  inform  him- 
self as  to  its  terms,  rules,  and  regulations,  was  as 
much  bound  by  them,  in  law,  as  if  he  had  read,  or 
expressly  assented  thereto;  that  when  the  boy  ar- 
rived at  the  school,  it  received  him  on  its  usual 
terms  and  regulations,  and  had  a  right  to  assume 
that  the  plaintiff  assented  thereto;  that  thereby 
there  was  an  implied  contract  between  the  parties, 
that  the  defendant  was  to  teach  and  care  for  the 
boy  on  its  usual  terms  and  regulations,  and  that 
the  plaintiff  was  to  abide  by  same. 

2.  That  in  order  to  bind  the  plaintiff  it  is  not 
necessary  to  show  that  he  read  the  catalog  of  the 
defendant,  or  expressly  assented  to  its  rules  and 
regulations;  that  in  sending  his  son,  without  in- 


forming  himself  thereof,  he  is  estopped  by  his  ac- 
tions to  contend  that  he  is  not  governed  by  such 
rules  and  regulations. 

3.  That  plaintiff  has  produced  no  evidence  that 
his  son  did  not  violate  the  rules,  was  improperly  ex- 
pelled, that  the  rules  were  unreasonable,  or  that  de- 
fendant was  actuated  by  any  other  motive  in  ex- 
pelling the  boy  than  the  enforcement  of  its  rules 
and  good  government  of  the  school;  that  defend- 
ant, in  sending  plaintiff  its  account  for  the  half- 
yearly  charges  in  advance,  expressly  put  the  plain- 
tiff on  notice  as  to  its  terms,  and  plaintiff,  by  mak- 
ing the  payment  on  same,  expressly  assented  there- 
to; that  the  plaintiff  admits,  in  his  evidence,  that 
he  knew  that  no  part  of  the  money  paid  for  the  half- 
yearly  session  in  advance  would  be  refunded,  if  the 
boy  were  expelled,  and  he  was  fixed  with  knowledge 
that  the  boy  was  subject  to  expulsion  if  he  violated 
the  rules. 

Argument 

1.  Was  the  plaintiff  bound  by  the  terms  and 
regulations  of  defendant? 

The  plaintiff  bases  his  right  for  relief  solely 
on  the  ground  that  he  sent  his  son  to  the  school 
without  reading  its  rules  and  regulations,  and  did 
not  expressly  assent  thereto. 

Such  a  position  is  clearly  untenable.  If  plain- 
tiff preferred  not  to  inform  himself  before  sending 
his  son  to  the  school,  he  was  as  much  bound  by  its 
terms  and  regulations  as  if  he  had  read  them  and 
expressly  assented  thereto.  Schools  cannot  be  ope- 
rated without  rules  and  regulations;  plaintiff,  as  a 
reasonable  man,  knew  this,  and  he  is  estopped  by 
his  conduct  to  deny  same.     The  defendant  had  a 


right  to  expect  that  the  boy  was  sent  to  it  in  con- 
formity with  its  rules;  not  only  was  the  plaintiff 
bound  by  its  terms  and  regulations  by  sending  the 
boy  to  the  school  without  informing  himself,  but 
from  his  own  evidence,  he  had  actual  knowledge 
of  same.  His  own  testimony  shows  that  he  first 
sent  his  boy  to  the  school  in  January,  1913,  for  the 
Spring  session.  Shortly  after  the  boy  arrived,  the 
defendant  sent  the  plaintiff  a  bill  for  payment  in 
advance  of  the  half-yearly  expenses.  He  made  one 
payment  thereon,  and  then  paid  the  balance  in  two 
installments.  This  was  not  by  agreement,  but 
merely  through  indulgence  or  courtesy  of  defend- 
ant. He  was  put  on  notice,  from  this  bill,  that  the 
half-yearly  payment  was  to  be  made  in  advance, 
and  he  simply  took  advantage  of  defendant's  cour- 
tesy to  pay  same  in  three  installments. 

He  sent  his  boy  back  to  school  in  September, 
1913,  for  another  half-yearly  session,  and  within  a 
few  days  after  his  arrival  the  defendant  again  sent 
plaintiff  another  bill  for  payment  in  advance  of  the 
half-yearly  expenses,  and  he  promptly  sent  it  his 
check  for  $90.00,  as  a  payment  on  same.  Again, 
he  says  he  knew  that,  if  the  boy  were  expelled, 
there  would  be  no  refund  of  any  part  of  the  money 
paid  (7-8-9-11-12-14). 

Therefore,  from  his  own  testimony,  he  was  fixed 
with  knowledge  (a)  that  the  rules  of  the  school 
required  half-yearly  payments  to  be  made  in  ad- 
vance; (b)  that  if  the  boy  were  expelled  no  part  of 
the  money  so  paid  would  be  refunded;  (c)  he  knew 
that  the  boy  must  conform  to  the  rules,  or  be  sub- 
ject to  expulsion;  (d)  by  making  payments  on  the 
bills  sent  him  for  half-yearly  expenses  in  advance, 

8 


he  thereby  expressly  assented  to  abide  by  the  terms 
and  regulations  of  the  school. 

The  rules  of  the  school  provide  "no  deduction 
will  be  made  when  a  boy  withdraws  or  leaves  with- 
out permission  of  the  principal,  or  is  dismissed,, 

(10). 

2.  Has  the  plaintiff  produced  any  evidence  what- 
ever, either  from  his  own  testimony  or  that  of  de- 
fendant, showing  that  the  boy  was  improperly  ex- 
pelled, or  that  defendant  was  actuated  by  any  other 
motive  in  dismissing  him  except  the  good  govern- 
ment and  control  of  the  school  ? 

It  is  conclusively  shown,  from  the  uncontradicted 
evidence,  that  the  boy  was  unruly,  continually  vio- 
lated the  civil  and  military  rules  of  the  school,  would 
not  stay  in  his  room  when  required  to  do  so,  threw 
things  in  the  assembly  hall,  did  not  prepare  his  les- 
sons, was  guilty  of  breach  of  arrest,  neglect  of  duty, 
raised  disturbance  after  taps,  high-tempered,  and 
had  more  demerits  entered  against  him  than  any 
pupil  in  the  school,  etc.  His  conduct  was  such  that 
he  was  publicly  reprimanded,  and  warned  by  Col- 
onel Horner  that,  if  he  allowed  his  dements  to  go  as 
high  as  one  hundred,  he  would  be  expelled.  This 
warning  had  no  effect  upon  him,  but  he  continued 
his  disobedient  and  unruly  conduct  until  his  de- 
merits got  to  two  hundred,  whereupon  he  was  ex- 
pelled in  the  same  manner  as  any  other  boy  would 
have  been  for  like  misconduct.  Colonel  Horner 
states  that  he  regarded  his  continued  presence  as 
demoralizing  to  the  school. 

The  entire  evidence  shows  that  only  as  a  last  re- 
sort, and  for  the  good  of  the  school,  was  this  boy 
expelled.  There  is  absolutely  no  evidence  that  the 
defendant  was  actuated  by  any  other  motive  in  ex- 


pelling  him  than  the  proper  control  and  manage- 
ment of  the  school.  His  conduct  was  demoralizing 
to  the  other  boys,  and  subversive  of  the  school  dis- 
cipline (12-14-15-16-18-19). 

The  defendant  was  clearly  within  its  rules  in 
expelling  the  boy.  It  had  a  right  to  do  so,  even  if 
said  rules  had  not  been  inserted  in  its  catalog.  It 
is  generally  recognized  that  a  school  may  enforce 
order  and  discipline  even  where  it  has  not  formu- 
lated rules. 

The  general  rules  of  defendant  on  this  subject 
were  as  follows:  "We  do  not  want  vicious  or  ha- 
bitually insubordinate  boys,  and  if  such  succeed 
in  entering  they  will  be  dismissed.  Applicants  are 
accepted  with  the  express  understanding  that  they 
will  submit  to  our  authority  in  every  respect.  A 
boy  whose  conduct  is  hurtful  to  the  scholarship 
and  morals  of  his  associates  will  be  expelled. " 

"Any  cadet  who  shall  disobey  a  command  of  the 
principal,  or  of  any  professor,  instructor,  or  other 
officer,  or  behave  himself  in  a  refractory  manner, 
shall  be  expelled  or  otherwise  punished''  (11-13). 

It  makes  no  difference  that  the  catalog  does  not 
show  the  number  of  demerits  sufficient  for  the  ex- 
pulsion of  a  pupil.  This  is  a  mere  matter  of  keep- 
ing track  of  the  violation  of  school  rules.  They 
were  not  necessary  to  be  inserted  in  the  catalog. 
The  defendant  had  a  right  to  expel  the  boy,  with- 
out regard  to  the  demerit  system,  simply  upon  his 
general  conduct,  in  the  interest  of  the  proper  gov- 
ernment of  the  school. 

3.  Was  the  Court  right  in  setting  aside  the  ver- 
dict, on  the  grounds  set  forth  in  its  order? 

We  respectfully  submit  that  it  unquestionably 
was. 


10 


We  have  argued,  supra,  that  the  plaintiff,  in  send- 
ing his  son  to  the  school  without  informing  him- 
self of  its  rules  and  regulations,  was  as  much  obli- 
gated to  conform  thereto  as  if  he  had  expressly  as- 
sented to  same.  That  his  conduct  showed  that  he 
sent  his  boy  to  the  school  to  be  instructed  accord- 
ing to  its  rules  and  regulations,  and  the  defendant 
had  a  right  to,  and  did  receive  him  on  such  terms. 
It  has  been  shown,  from  plaintiff's  evidence,  that 
he  had  express  knowledge  of,  and  expressly  assent- 
ed to  defendant's  terms  and  regulations.  On  two 
occasions,  he  was  sent  a  bill  by  the  defendant  for 
payment  of  the  half-yearly  expenses,  in  advance, 
and  he  thereby  knew  that  this  was  a  part  of  the 
rules  and  regulations  of  the  school.  He  expressly 
assented  therto  by  making  payments  thereon.  He 
testified  that  he  knew  that  no  money,  so  paid  for 
the  half-yearly  session  in  advance,  would  be  re- 
funded if  the  boy  were  expelled.  He  has  pro- 
duced no  evidence  whatever  that  the  terms  or  rules 
were  unreasonable,  that  the  boy  was  expelled  from 
any  other  motive  than  the  good  government  of  the 
school,  or  that  such  expulsion  was  unreasonable. 
Again,  he  admits  that  a  copy  of  the  catalog  may 
have  come  to  him  through  the  mail,  and  he  may 
have  destroyed  same  without  reading  it,  thinking 
it  was  some  pamphlet.  The  defendant  mailed  him 
a  catalog.  It  could  not  compel  him  to  read  it.  It 
expressly  appears,  from  all  the  evidence,  that  the 
defendant  was  within  its  rights  in  expelling  the  boy, 
and  if  same  had  not  been  done  it  would  have  been 
derelict  in  its  duty  to  the  other  pupils  and  the  proper 
government  of  the  school.  Such  being  the  uncon- 
tradicted evidence,  the  Court  was  right  in  setting 
aside  the  verdict  on  the  grounds,  "that  it  should 

U 


have  instructed  the  jury  that,  if  they  believed  the 
evidence,  they  should  answer  the  first  issue  nothing, 
and  the  second  issue  $80.56;  and  further,  that  there 
was  no  evidence  that  the  defendant  expelled  the 
boy  from  any  other  motive  than  the  good  govern- 
ment and  conduct  of  the  school  (24). 

4.     The  law  applicable  to  the  case  at  bar. 

In  Horner  vs.  Westcott,  124  N.  C,  518,  the  plain- 
tiff brought  an  action  against  the  defendant,  after 
expelling  two  pupils,  to  recover  for  the  whole 
scholastic  year,  alleging  that  the  terms  of  his  cata- 
log provided  that  the  entire  school  year  should  be 
paid  for,  even  if  the  pupil  were  expelled.  The  evi- 
dence developed  that  one  pupil  was  taken  in  the 
school  at  half  price,  and  the  other  one  for  $100.00 
per  session,  and  that  regular  payments  were  to  be 
made,  according  to  its  rules,  in  sums  of  $62.50,  pay- 
able September  1,  November  1,  January  18,  and 
April  1.  The  boys  were  expelled  before  November 
1 ;  the  Court  held  that,  inasmuch  as  one  of  the  boys 
was  to  be  taken  at  half  price  and  the  other  one  for 
$100.00  per  session,  and  as  the  first  payment  was 
to  be  made  on  September  1,  that  the  plaintiff  could 
only  recover  for  the  amount  that  should  have  been 
paid  on  September  1,  and  that  there  was  nothing  in 
the  rules  showing  that,  in  case  of  expulsion,  the 
parent  would  be  liable  for  the  whole  scholastic  year. 

The  Court  further  said,  at  page  521 :  "This  was 
not  paid  as  it  was  to  be,  at  the  commencement  of 
the  session.  If  it  had  been  paid,  it  is  stipulated 
that  it  would  not  be  returned  except  at  the  option 
of  the  plaintiff.  That  it  was  not  paid  when  these 
boys  entered  school  was  owing  to  indulgence,  and 
not  the  fault  of  the  plaintiff,  and  the  defendant  has 
no  right  to  complain  of  this.  If  this  installment  had 

>  12 


been  paid,  the  plaintiff  would  have  had  the  right  to 
retain  it.  As  it  was  the  defendant's  duty  to  have 
paid  this  installment  when  it  was  due,  and  not  the 
plaintiff's  fault  that  it  was  not  paid,  it  seems  that 
the  defendant  should  not  complain  if  he  has  to  pay 


now." 


It  will  be  observed  by  the  Court  that  the  plain- 
tiff in  the  case,  supra,  introduced  his  catalog  to 
prove  that  he  was  entitled  to  recover  for  the  whole 
scholastic  year,  and  the  point  made  in  the  present 
case,  to  wit :  that  the  plaintiff,  by  sending  his  boy  to 
the  school,  was  bound  by  its  terms  and  regulations, 
though  he  had  not  read  or  seen  the  catalog,  was 
not  raised  or  determined  in  that  case.  Therefore, 
the  Horner  case  does  not  hold,  that  the  defendant 
would  not  be  bound  by  the  terms  of  the  school,  if 
he  sent  his  boy  to  same  without  informing  himself 
of  the  rules  and  regulations.  The  facts  in  the  in- 
stant case  are  much  stronger,  and  distinguishable 
from  the  Horner  case;  (a)  in  that,  the  plaintiff  says, 
in  the  present  case,  he  sent  his  boy  to  the  school 
without  informing  himself;  (b)  when  he  sent  his 
boy  to  the  school  in  January,  1913,  he  received  a  bill 
for  the  half-yearly  expenses  to  be  paid  in  advance, 
made  payments  on  same,  and  when  he  sent  his  boy 
for  the  Fall  session,  in  September,  1913,  he  also  re- 
ceived a  bill  for  the  half-yearly  session  in  advance, 
and  sent  his  check  for  $90.00  as  a  payment  on  same; 
(c)  defendant  mailed  plaintiff  a  catalog,  and  the 
latter  admits  that  same  may  have  come  to  his  house, 
but  if  so  he  destroyed  it  without  reading;  (d)  he  ad- 
mits that  he  knew,  if  the  boy  were  expelled,  no 
money  paid  would  be  refunded;  (e)  he  further  ad- 
mits that,  for  the  half-yearly  session  for  the  Spring 
of  1913,  he  paid  in  three  installments,  but  this  was 

13 


by  the  courtesy  of  the  school,  and  not  by  agreement; 
(f)  by  receiving  two  bills  for  the  half-yearly  pay- 
ments in  advance,  and  making  payments  on  same,  he 
thereby  knew  and  assented  to  the  terms  of  the 
school,  and  his  admission  that  he  knew,  if  the  boy 
were  expelled,  no  part  of  the  money  would  be  re- 
funded, shows  that  he  was  entirely  familiar  with 
the  terms  and  rules  of  the  school,  to  wit:  that  pay- 
ments for  the  half-yearly  session  should  be  made  in 
advance,  and,  under  its  rules,  his  boy  was  subject 
to  expulsion,  if  he  violated  same,  and  no  part  of 
the  money  paid  would  be  refunded;  (g)  in  the 
present  case,  payment  for  the  half-yearly  session 
was  to  be  made  in  advance,  whereas,  in  the  Horner 
case,  they  were  to  be  in  two  payments — in  Septem- 
ber and  November. 

The  Horner  case,  supra,  holds  that  the  plaintiff 
was  entitled  to  recover  the  amounts,  according  to 
its  rules,  which  were  due  and  payable  on  Septem- 
ber i,  and  again,  because  the  plaintiff  indulged  the 
defendant,  that  this  did  not  waive  the  terms;  also, 
that  as  the  plaintiff  could  recover  for  the  amounts 
to  be  paid  in  advance  according  to  its  rules,  the  de- 
fendant could  not  complain  if  he  had  not  paid  same, 
on  account  of  the  indulgence  of  the  plaintiff. 

In  the  case  at  bar,  the  plaintiff,  when  he  received 
the  bill,  in  September,  1913,  for  the  half-yearly 
payment  in  advance,  knew  this  was  required,  and 
he  promptly  sent  his  check  for  $90.00  as  a  payment 
on  same. 

In  the  Horner  case,  supra,  the  Court  held  that 
the  plaintiff  might  recover  for  the  amount  that 
ought  to  have  been  paid,  and  which  was  not  paid, 
on  the  entrance  of  the  students.  In  the  case  at  bar, 
plaintiff  was  due  defendant  $170.56  for  the  half- 

14 


yearly  session,  in  advance.  He  paid  $90.00  on  same, 
and  is  therefore  due  $80.56.  The  total  sum  being, 
under  the  rules,  payable  in  advance,  plaintiff  is 
liable,  under  the  above  authority,  for  the  balance. 

In  Horner  and  Graves  vs.  Baker,  74  N.  C,  65,  the 
plaintiff  attempted  to,  introduce  in  evidence,  circu- 
lars which  were  extensively  advertised,  showing  its 
terms  to  be  payment  in  advance  for  the  half-yearly 
session,  and  also  that  the  plaintiffs  were  put  to  ex- 
pense in  preparing  for  board  and  tuition  of  stu- 
dents at  each  session;  the  boy  was  expelled  for  vio- 
lation of  the  rules,  and  the  lower  Court  only  al- 
lowed recovery  for  the  actual  tuition  furnished.  On 
appeal,  the  Court  said  (67)  "The  fact  that  plain- 
tiffs were  conductors  of  a  public  school,  and  had 
advertised  extensively  the  terms  and  regulations  of 
their  school,  taken  in  connection  with  the  fact  that 
defendant  had  sent  his  son  to  this  school  for  one 
session,  and  had  also  sent  him  to  a  second  session, 
was  some  evidence  the  defendant  had  notice  of  the 
terms  and  regulations  of  the  school,  and  had  as- 
sented thereto,  and  the  lower  Court  committed  an 
error  in  not  permitting  same  to  go  to  the  jury." 

The  Court  will  observe  that,  in  this  case,  the  point 
was  not  directly  raised  as  to  whether  the  parent,  in 
sending  his  son  to  a  school  without  informing  him- 
self as  to  its  terms,  was  bound  thereby.  The  facts 
in  the  case  at  bar  are  much  stronger  and  different 
from  those  in  the  above  case,  as  discussed  supra. 

In  Bingham  School,  et  al.,  vs.  Richardson,  60  N. 
C,  217,  the  Court  said:  "Where  the  proprietors  and 
managers  of  a  school,  on  being  applied  to  by  par- 
ent to  receive  his  sons  as  scholars,  inform  of  their 
willingness  to  receive  them,  and  sent  him  a  state- 
ment of  their  terms,  one  of  which  is,  when  a  place 

15 


is  engaged,  the  session's  charge  is  considered  due, 
unless  the  boy  be  prevented  from  coming  by  act  of 
God,  and  the  parent,  by  letter,  expresses  his  ac- 
ceptance of  the  terms,  although  does  not  send  his 
sons  to  the  school,  he  is  liable  to  pay  for  the  session's 
board  and  tuition,  the  proprietors  proving  their  abil- 
ity and  willingness  to  comply  with  the  contract  on 
their  part." 

It  will  be  observed  that,  in  this  case,  the  boys 
were  not  even  sent  to  the  school,  yet  the  Court  held 
that  the  defendant  was  chargeable  for  a  session  in 
advance. 

In  the  case  at  bar,  the  plaintiff  did  not  make  a 
formal  application,  but  actually  sent  his  son  to  the 
school,  and  he  thereby  was  as  much  bound  by  the 
terms  of  the  school  as  if  he  had  signed  an  instru- 
ment stating  "I  will  be  bound  by  your  rules." 

If,  in  the  Bingham  case,  the  plaintiff  could  recov- 
er when  the  boys  did  not  attend,  certainly  in  the  in- 
stant case,  the  defendant  should  recover,  when  the 
boy  was  sent,  and  it  was  ready  and  willing  to  in- 
struct him  on  its  usual  terms. 

In  Manson  vs.  Culver  Military  School,  141  111. 
App.,  250,  the  plaintiff  sent  his  boy  to  the  defend- 
ant's school.  He  made  a  written  application  for  the 
admission,  which  was  in  part  as  follows:  "I  desire 
to  enter  my  son  as  a  cadet  in  Culver  Military  Acad- 
emy for  the  year  commencing  September  16,  1903, 
and  ending  June,  1904,  subject  to  the  conditions  of 
your  printed  catalog  and  the  regulations  of  the 
Academy." 

It  does  not  appear  in  this  case  whether  the  plain- 
tiff had  ever  actually  read  or  seen  the  printed  cata- 
log, but  it  is  evident  he  simply  applied  for  admission 
to  the  school  on  one  of  its  formal  blanks  for  said 

16 


purpose.  One  of  the  rules  of  the  school  was  that, 
if  a  pupil  were  dismissed  or  suspended,  no  money 
should  be  refunded,  and  that  a  half-yearly  payment 
be  made  in  advance.  The  plaintiff  entered  his  son 
at  the  school  on  September  18,  and  he  was  dismissed 
on  November  17,  1903.  The  plaintiff,  in  entering 
his  son  at  the  school,  complied  with  the  terms,  in 
paying  $250.00  in  advance,  and  brought  an  action 
to  recover  the  pro-rata  part  of  said  sum,  on  ac- 
count of  his  son  being  expelled  before  the  end  of 
the  session. 

The  Court  said,  at  pages  252-3,  "The  written  ap- 
plication of  plaintiff  for  the  admission  of  his  son  to 
the  Academy,  together  with  the  printed  catalog 
and  regulations  of  the  Academy  referred  to  in  the 
application,  constitute  the  contract  between  the 
plaintiff  and  defendant;  that  contract  provides  that, 
in  case  a  cadet  is  dismissed,  no  money  will  be  re- 
funded. To  recover  the  money  paid  on  a  contract, 
the  plaintiff  was  bound  to  prove  a  breach  of  the  con- 
tract by  the  defendant,  and  the  question  presented 
on  this  appeal  is,  was  the  dismissal  of  Cadet  Man- 
son,  under  the  facts  and  circumstances  shown  by 
the  evidence,  a  breach  of  the  contract  between 
the  plaintiff,  his  father  and  the  defendant?  Under 
the  regulations  of  the  Academy,  any  delinquency 
of  a  cadet  was  reported  on  the  guard  sheet,  and 
the  list  of  delinquencies  was  read  daily.  The  cadets 
against  whom  a  delinquency  was  so  reported 
could  apply  to  the  commandant  of  such  cadets  to 
have  such  delinquency  removed.  The  command- 
ant also  fixed  the  number  of  demerits  for  each  de- 
linquency. Between  September  18  and  Novem- 
ber 16,  1903,  Cadet  Manson  accumulated,  ac- 
cording to  his  admission,  192  unremoved  demerits, 
and  according  to  the  contention  of  defendant,  207." 

17 


The  case  further  shows,  at  page  254,  that  the  cadet, 
after  violating  the  rules — "The  next  morning  he 
was  called  before  the  commandant  of  cadets,  who 
told  him  that  he  coirld  not  stand  his  conduct  of  the 
night  before,  sent  him  to  the  Superintendent,  and 
the  latter  told  him  that  his  conduct  of  the  night  be- 
fore was  something  they  could  not  stand;  that  he 
was  very  sorry  he  had  to  let  him  go.  The  Superin- 
tendent testified  that  he  gave  the  cadet  his  dis- 
missal, because  of  the  accumulation  of  his  demerits 
and  his  violation  of  the  rules  of  the  Academy  the 
day  before,  and  during  the  entire  Fall." 

The  Court  further  said,  at  page  255,  "It  was  for 
the  Superintendent  to  determine  what  the  punish- 
ment for  such  acts  and  conduct  should  be;  whether 
it  should  be  dismissal  from  the  Academy,  or  some 
lighter  punishment.  The  regulations  conferred  up- 
on the  Superintendent  the  power  to  dismiss  cadet 
Manson  for  such  actions,  irrespective  of  the  ques- 
tion whether  his  demerits  for  the  term,  up  to  that 
time,  amounted  to  a  few  less  or  a  few  more  than 
200.  The  only  requirement  necessary,  so  far  as 
concerns  a  review  by  a  court  of  justice,  of  his  ac- 
tion in  dismissing  Cadet  Manson,  is  that  his  action 
shall  be  so  unreasonable  and  oppressive  as  to  war- 
rant a  conclusion  that  he  acted  maliciously,  un- 
fairly, or  from  some  improper  motive,  other  than 
the  proper  enforcement  of  the  regulations  of  the 
Academy,  and  the  maintenance  of  proper  dis- 
cipline— citing  Koblitz  vs.  West  Rose  Univ., 
21  Ohio  Cir.  Ct.,  144;  Curry  vs.  La  Salle 
Sem.,  168  Mass.,  7;  Fessman  vs.  Seeley,  30  S. 
W.,  268;  Kabus  vs.  Seftner,  34  Misc.  (N.  Y.),  538; 
Horner  School  vs.  Westcott,  124  N.  C,  518/' 

The  Court  again  said,  at  page  256,  "We  think 

that  the  evidence  fails  to  show  that  the  action  of 

16 


the  Superintendent  in  dismissing  Cadet  Manson 
was  unreasonable  or  oppressive,  or  any  facts  to  war- 
rant or  support  a  conclusion  that,  in  ordering  such 
dismissal,  the  Superintendent  acted  maliciously, 
unfairly,  or  from  any  improper  motive.  It  follows, 
from  what  has  been  said,  that  in  our  opinion  the 
evidence  is  not  sufficient  to  warrant  or  support  a 
finding  by  the  jury  that  the  dismissal  of  plaintiff's 
son  by  the  defendant  was  a  breach  of  the  contract 
between  plaintiff  and  defendant,  and  therefore,  is 
not  sufficient  to  warrant  or  support  a  recovery  by 
the  plaintiff  from  the  defendant  of  the  money  paid 
by  the  former  to  the  latter,  under  the  contract ;  and 
the  judgment  will  be  reversed/' 

We  have  quoted  at  some  length  from  this 
opinion,  as  it  is  similar  in  many  respects  to  the  case 
at  bar.  In  the  Manson  case,  as  stated  supra,  the 
plaintiff  merely  made  a  written  application  for  the 
entrance  of  his  son  to  the  school,  subject  to  the 
conditions  of  its  catalog  and  regulations,  there  be- 
ing no  evidence  that  he  had  either  seen  or  read  such 
catalog  or  regulations. 

In  the  case  at  bar,  while  plaintiff  did  not  sign  a 
formal  application,  he  sent  his  boy  to  the  school, 
received  notice  of  the  terms,  made  payments 
accordingly,  and  knew  there  would  be  no  refund 
if  the  boy  were  expelled. 

Again,  in  the  case  at  bar,  as  in  the  Manson  case, 
there  was  a  demerit  system,  to  keep  track  of  the 
delinquencies  of  pupils.  In  this  case,  the  boy 
violated  the  rules  of  the  school,  and  allowed  his 
demerits  to  accumulate.  In  the  instant  case,  the 
undisputed  evidence  shows  that  the  boy  was  un- 
ruly, repeatedly  violated  the  civil  and  military 
rules,  threw  things  in  the  Assembly  Hall,  smoked, 

19 


and  ran  up  his  demerits  to  about  200;  that  he  was 
publicly  reprimanded  by  Colonel  Horner  at  a  roll 
call,  and  warned  that  if  he  did  not  improve  his  con- 
duct he  would  be  dismissed;  that,  notwithstand- 
ing this,  he  persisted  in  violating  the  rules,  and 
finally  his  actions  were  such  that  the  principal  re- 
garded his  continued  presence  so  demoralizing  to 
the  school  that  he  dismissed  him. 

The  Court,  in  the  Manson  case,  and  which  we 
submit  is  the  correct  rule,  says :  "The  only  require- 
ment necessary,  so  far  as  concerns  a  review  by  a 
court  of  justice  of  his  action  in  dismissing  Cadet 
Manson  is,  that  his  action  shall  be  so  unreasonable 
and  oppressive  as  to  warrant  a  conclusion  that  he 
acted  maliciously,  unfairly,  or  from  some  improper 
motive — some  motive  other  than  the  proper  en- 
forcement of  the  regulations  of  the  Academy  and 
the  maintenance  of  proper  discipline,  and  that  such 
discipline  did  not  warrant  the  jury  in  rendering  a 
verdict  for  the  plaintiff." 

In  the  case  at  bar,  we  respectfully  submit  that 
there  is  no  evidence  that  Colonel  Horner  wrong- 
fully expelled  the  boy,  or  did  so  from  any  other 
motive  than  the  good  government  and  protection 
of  his  pupils. 

The  Court,  in  setting  aside  the  verdict,  recog- 
nized this  position,  and  says  that  there  was  no  evi- 
dence shown  that  defendant  was  actuated  by  any 
other  motive  in  expelling  the  boy  than  the  good 
government  of  the  school.  This  was  really  the  only 
question  left  open  to  the  jury,  as  the  Court  charged 
them  that,  if  the  plaintiff  sent  his  son  to  the  school 
without  informing  himself  of  the  rules  and  regula- 
tions thereof,  he  was  bound  thereby,  even  if  he 
had  not  read  or  seen  the  catalog.    This  charge,  we 


20 


respectfully  submit,  as  argued  supra,  was  un- 
questionably correct,  and  especially  so  in  view  of 
the  fact  that  plaintiff  admits  a  catalog  may  have 
come  to  his  house,  but  did  not  read  same;  that  he 
received  two  bills  showing  that  payment  was  re- 
quired in  advance;  that  he  made  payment  on  such 
bills,  and  knew  that,  if  his  boy  were  expelled,  no 
money  would  be  refunded. 

In  Kabus  vs.  Seftner,  69  N.  Y.  S.,  983,  the  Court 
says:  "In  an  action  by  a  student  to  recover  tuition 
fees  for  a  failure  to  give  plaintiff  the  necessary  in- 
structions to  enable  him  to  pass  the  examination 
given  by  the  State  Board  of  Regents,  it  was  error 
to  allow  a  proportionate  recovery  for  the  instruc- 
tion which  plaintiff  did  not  receive  by  his  being  sus- 
pended for  improper  conduct,  since  the  contract 
was  entire  and  indivisible;  the  plaintiff  being  either 
entitled  to  a  total  recovery  or  a  forfeiture." 

The  Court  further  said,  at  page  984.  "The  plain- 
tiff, by  entering  the  defendant's  school,  subjected 
himself  to  their  reasonable  rules  of  discipline.  The 
power  is  vested  in  the  faculties  of  all  schools  and 
colleges  to  suppress  and  punish  unbecoming  con- 
duct. If  the  charge  against  thex  plaintiff  was  true, 
his  actions  were  certainly  subversive  of  discipline; 
and  beyond  this,  no  instructor  could  or  should  be 
compelled  to  continue  his  duties  after  such  insult, 
until  suitable  apology  offered." 

In  Vidor  vs.  Peacock,  145  S.  W.,  673  (Tex.),  the 
plaintiff  sent  the  defendant  one  of  its  circulars  and 
catalogs,  and  a  blank  to  sign  for  entering  his  son 
at  the  school.  The  defendant  did  not  sign  the  blank 
for  enrollment  of  his  son,  for  the  reason  that  he 
did  not  wish  to  be  bound  by  its  provisions;  he 
brought  his  son  to  the  school,  and  entered  him 
without  making  or  seeking  to  make  any  arrange- 


21 


ment  different  from  the  terms  in  the  catalog;  and 
made  the  payment  in  advance,  as  required  by  the 
rules  of  the  school,  which  provided  that  there  would 
be  no  refund  of  the  money  except  on  account  of 
severe  sickness,  and  then  upon  advice  of  a  San 
Antonio  physician,  where  the  school  was  located. 
The  boy  got  sick,  and  was  not  returned,  upon  the 
advice  of  a  physician  at  another  point.  In  this  case, 
the  Court  said:  "In  an  action  upon  notes  given  by 
defendant  for  the  tuition  of  his  son  at  plaintiff's 
school,  a  circular  and  catalog  were  admissible  in 
evidence  as  showing  the  terms  of  the  contract  be- 
tween the  parties,  accepted  by  giving  the  notes, 
that  the  contract  was  for  a  year's  tuition." 

"A  parent  contracted  to  pay  a  whole  year's 
tuition  for  his  son,  unless  the  boy  withdrew  on 
account  of  severe  sickness  on  the  advice  of  a  local 
physician.  Subsequently  the  boy,  while  tempor- 
arily at  his  home  in  another  city  with  a  slight  ill- 
ness which  did  not  prevent  his  attending  school, 
developed  a  case  of  trachoma,  which,  according  to 
physicians  of  his  home  city  who  examined  him,  un- 
fitted him  for  further  attendance  at  school.  No 
examination  was  made  by  any  physician  of  the  city 
where  the  school  was  located.  Held,  that  the  boy's 
sickness  with  trachoma  was  no  defense  in  an  action 
upon  the  contract  for  the  unpaid  part  of  the  entire 
year's  tuition." 

In"  this  case,  as  the  Court  will  note,  a  catalog  was 
sent  the  defendant,  and  a  blank  to  sign  for  enroll- 
ing his  son  in  the  school ;  but  instead  of  signing  an 
enrollment  blank  he  brought  his  son  to  the  school, 
and  entered  him  without  any  written  agreement, 
gave  his  notes  for  the  amounts  to  be  paid  in  ad- 
vance, and  the  Court  held  that  the  giving  of  said 


22 


notes  was  an  assent  to  the  rules  of  the  school  re- 
quiring payments  to  be  made  in  advance,  and  also 
of  the  terms  of  the  school  in  reference  to  sickness. 
In  the  case  at  bar,  the  defendant  says  that  a 
catalog  may  have  come  to  his  house,  but  he  did  not 
read  same,  did  not  seek  to  inform  himself  of  its 
terms,  but  sent  his  son  to  its  school,  and  when  he 
received,  shortly  thereafter,  a  bill  for  the  half- 
yearly  terms  in  advance,  he  made  a  payment  on 
same;  and  further  says  that  he  knew  that,  if  the 
boy  were  expelled,  no  part  of  the  money  paid  would 
be  refunded.  This  showed  not  only  knowledge,  but 
acceptance  of  the  terms  of  the  school. 

In  Fessman  vs.  Seeley,  30  S.  W.,  268-9,  the 
Texas  Court  says:  "In  an  action  to  recover  ad- 
vanced payments  for  the  tuition  of  plaintiff's  son, 
who  had  been  expelled  from  defendant's  school,  the 
evidence  showed  that  it  was  the  understanding  of 
the  parties  that,  in  case  of  expulsion  of  the  pupil 
for  misconduct,  advanced  payments  should  be 
liquidated  damages,  and  not  recoverable.  The  rules 
of  the  school  provided  that  there  would  be  no  re- 
duction in  case  of  withdrawals,  and  for  the  for- 
feiture of  all  payments  in  case  of  expulsion.  Held 
that  plaintiff  could  not  recover.'' 

In  the  case  at  bar,  the  defendant  admits  he  knew 
that  when  he  made  payments  in  advance  for  the 
half-yearly  session,  there  would  be  no  refund  of 
the  money  if  the  boy  were  expelled. 

In  Curry  vs.  La  Salle  Sem.,  46  N.  E.,  110-11,  the 
Massachusetts  Court  says:  "Plaintiff  sent  her 
daughter  to  defendant's  school,  agreeing  to  be 
bound  by  the  conditions  of  the  catalog,  which  pro- 
vided that  scholars  should  not  be  absent  from  school 
except  at  regular  recesses.     Held,  that  defendant 

23    • 


was  not  bound  to  allow  plaintiff's  daughter  to  re- 
main in  the  school,  unless  with  the  understanding 
that  she  should  not  be  absent  during  term  time 
without  permission  of  the  officers  thereof." 

In  this  case,  the  plaintiff's  daughter  was  expelled, 
and  she  brought  an  action  to  recover  money  which 
she  had  advanced  for  the  half-year's  board  and 
tuition.  The  Court  held  that  she  could  not  recover. 
In  this  case  the  plaintiff  merely  signed  a  formal 
application  for  entrance  to  the  school,  and  agreed 
to  be  bound  by  the  terms  thereof. 

As  argued  supra,  this  formal  application  could 
be  no  stronger  than  where  a  parent,  as  in  the  case 
at  bar,  sends  his  son  to  a  school,  without  informing 
himself  or  reading  the  catalog  as  to  the  terms  of 
the  school. 

The  conduct  of  the  plaintiff  shows  that  he  in- 
tended to  be  bound  thereby,  and  actually  had  notice 
of  the  rules  and  regulations.  , 

Acceptance  of  the  terms  of  a  school  may  be  as 
conclusively  implied  or  shown  from  the  acts  of  the 
party,  as  by  formal  written  agreement  or  applica- 
tion. The  plaintiff,  by  sending  his  son  to  the 
school,  showed  that  he  intended  to  be  bound  by 
the  terms  thereof,  and  the  defendant,  in  receiving 
him,  showed  that  it  accepted  him  on  such  terms. 
The  defendant,  in  sending  a  bill  for  the  half-yearly 
advance  payment,  shows  that  it  received  the  boy 
on  its  usual  terms,  and  the  plaintiff,  by  'making  pay- 
ments on  same,  showed  that  he  sent  him  there  on 
such  terms.  Again,  when  plaintiff  says  that  he 
knew,  if  the  boy  were  expelled,  no  money  would  be 
refunded,  shows  conclusively  that  he  knew  the  boy 
might  be  expelled  under  the  regulations  of  the 
school, 


In  i  Page  on  Contracts,  Sec.  50,  the  author  says: 
"The  party  accepting  an  offer  may  as  well  signify 
his  assent  to  an  offer  by  doing  acts  which  clearly 
and  unquestionably  show  such  assent  as  by  express 
words." 

"The  defendant  had  undoubted  power  to  adopt 
and  enforce  suitable  rules  and  regulations  for  the 
government  and  management  of  the  school."  25 
A.  &  E.  Enc.  Law  (2  Ed.),  27-8. 

"What  are  reasonable  rules  is  a  question  of  law." 
Thompson  vs.  Beaver,  63  111.,  357;  Fertich  vs. 
Michener,  60  Amer.  Rep.,  718  (Ind.)  ;  State  vs.  Van- 
derbilt,  9  Am.  S.  Rps.,  822  (Ind.). 

In  the  case  at  bar,  there  is  absolutely  no  evidence 
that  the  rules  and  the  enforcement  of  same  by  de- 
fendant were  unreasonable.  The  plaintiff  intro- 
duced no  testimony  whatever  on  this  point,  and  the 
defendant's  evidence  shows  conclusively  that  not 
only  were  the  rules  reasonable,  but  the  expulsion  of 
the  boy  was  for  the  good  government  and  protection 
of  the  school. 

"There  can  be  no  question  as  to  the  right  to  expel 
a  pupil  when  his  conduct  is  such  as  to  interfere  with 
the  discipline  and  proper  government  of  the  school." 
35  Cyc,  1140-1. 

An  examination  of  the  cases  cited  in  this  author- 
ity will  show  that  the  defendant  was  more  than 
within  its  rights  in  expelling  the  plaintiff's  son.  It 
is  undisputed  that  this  boy  persistently  violated  the 
rales  and  regulations  of  the  school;  that  he  was 
warned  by  the  principal  that  he  must  cease  his  mis- 
conduct or  would  be  expelled;  that  thereafter  he 
not  only  did  not  improve,  but  continued  to  violate 
the  rules,  until  his  further  presence  was  regarded 
demoralizing  to  the  school  and  other  pupils. 

25 


In  Burpee  vs.  Burton,  45  Wis.,  156-7,  the  Court 
said:  "The  teacher  is  responsible  for  the  discipline 
of  his  school,  and  for  the  progress,  conduct,  and 
deportment  of  his  pupils.  It  is  his  imperative  duty 
to  maintain  good  order,  and  to  require  of  his  pupils 
a  faithful  performance  of  their  duties.  If  he  fails 
to  do  so,  he  is  unfit  for  the  position ;  if  the  offender 
is  incorrigible,  suspension  or  expulsion  is  the  only 
adequate  remedy.  We  conclude,  therefore,  that  a 
teacher  has,  in  a  proper  case,  the  inherent  power 
to  suspend  or  expel  a  pupil." 

In  Hodgkins  vs.  Rockport,  105  Mass.,  475-6; 
Expulsion,  "was  sustained  for  misconduct  in 
whispering  and  laughing,  omission  to  study,  etc."; 
in  School  vs.  Bradford,  36  S.  E.,  920  (Ga.),  "for 
failure  to  write  a  composition";  in  Murphy  vs. 
Maringo  School,  30  la.,  429,  "for  persistent  viola- 
tion of  regulations";  in  Donahoe  vs.  Richards,  61 
Am.  Dec,  256-62  (Me.),  "for  refusal  to  read  from 
a  book  prescribed  by  the  school  committee";  in 
Gurney  vs.  Pitkin,  76  Am.  Dec,  171  (Vt.),  "for  re- 
fusal to  write  English  composition";  in  Vermillion 
vs.  State,  no  N.  W.,  736  (Ind.),  "for  persistent 
disobedience";  and  also  many  other  authorities 
could  be  cited  to  the  same  effect. 

Applying  these  cases  to  the  conduct  of  plaintiff's 
son,  can  there  be  any  question  as  to  the  right  of  de- 
fendant to  expel  the  boy  for  the  varied  offenses  of 
which  he  was  guilty? 

In  Crane  vs.  Hamilton,  42  Mo.  App.,  24,  it  was 

held  that,  when  a  pupil  is  guilty  of  bad  conduct  and 

violation  of  the  rules,  he  might  be  expelled,  even  if 

there  had  been  no  rule  formulated  applicable  to  his 

offense,  and  that  such  failure  to  provide  a  rule  did 

not  deprive  the  teacher  of  authority  to  enforce  rules 

of  conduct  prescribed  by  common  sense  or  decency. 

26 


5.  The  plaintiff's  position  is  totally  inconsistent 
with  his  actions  and  his  knowledge  of  the  rules  and 
regulations  of  the  school: 

(a)  It  is  undisputed  that  defendant  mailed  him 
a  catalog  before  his  son  went  to  the  school  in  the 
Fall  of  1913;  (b)  he  admits  that  a  catalog  may  have 
come  to  his  house,  and  may  have  destroyed  same 
without  reading;  (e)  he  had  every  opportunity  to 
acquire  knowledge  of  the  rules,  but  chose  to  send 
his  son  to  the  school  without  doing  so;  (d)  in  the 
Spring  of  1913,  he  first  sent  his  boy  to  the  school, 
and  received,  shortly  thereafter,  a  bill  for  the  half- 
yearly  session,  payable  in  advance,  and  paid  same; 
(e)  in  the  Fall  of  1913,  shortly  after  his  boy  arrived 
for  the  Fall  session,  he  received  a  bill  calling  for  the 
half-yearly  payment  in  advance;  he  paid  $90.00  on 
same,  without  agreement  to  defer  the  balance.  He 
admits  he  knew  that,  if  the  boy  were  expelled,  there 
would  be  no  refund  of  the  amount  paid;  (f)  he  has 
produced  no  evidence  to  show  that  the  terms  and 
rules  were  unreasonable,  or  that  the  boy  was  im- 
properly expelled. 

From  all  these  facts,  can  he  be  heard  to  say  he  is 
not  bound  by  the  rules  and  regulations?  When  he 
sent  his  son  to  the  school  without  informing  him- 
self, is  he  not  as  much  bound  by  the  terms  as  if  he 
had  formerly  assented  to  same  in  writing?  When 
bills  were  sent  to  him  for  payment  in  advance,  he 
made  payments  on  same  without  demur,  and  when 
he  says  he  knew  that,  if  the  boy  were  expelled,  no 
part  of  the  money  paid  would  be  refunded,  has  he 
not  assented  to,  and  is  he  not  fixed  with  knowledge 
of  the  rules? 

From  the  conduct  of  the  plaintiff,  the  defendant 
had  every  right  to  believe  and  act  on  the  assump- 
tion that  plaintiff  assented  to  its  terms  and  regula- 

27 


tions,  and  the  plaintiff,  by  his  conduct,  is  estopped 
to  deny  this. 

'When  a  person,  with  actual  or  constructive 
knowledge  of  the  facts,  induces  another  by  his 
words  ot  conduct  to  believe  that  he  acquiesces  in 
or  ratifies  a  transaction,  or  that  he  will  offer  no 
opposition  thereto,  and  that  other,  in  reliance  on 
such  belief,  alters  his  position,  such  person  is 
estopped  from  repudiating  the  transaction  to  the 
other's  prejudice. "     16  Cyc,  791-2. 

Under  the  Horner  case,  124  N.  C.,. supra,  it  is  held 
that,  even  if  a  boy  be  expelled,  defendant  is  liable 
for  the  payment  which  should  have  been  made  in 
advance,  though  the  latter  may  not  have  paid  any 
part  thereof.  In  the  present  case,  by  the  rules  of 
the  school,  the  plaintiff  was  due  to  pay  $170.56  in 
advance.  He  paid  $90.00  on  same,  and  he  not  only 
cannot  recover  back  any  part  of  said  sum  so  paid, 
but  is  liable  to  defendant  for  the  balance,  which 
should  have  been  paid  upon  the  entrance  of  his  boy 
to  the  school,  to  wit:  $80.56. 

Some  of  the  cases  hold  that  the  terms  of  payment 
provided  by  the  school  rules  are  in  the  nature  of 
liquidated  damages.  The  plaintiff  introduces  no 
evidence  to  show  that  the  charges  are  unreason- 
able, or  that  the  boy  was  improperly  expelled. 
Whenever  his  son  violated  the  rules,  and  had  to  be 
expelled,  the  plaintiff,  through  his  son,  violated  the 
contract  between  himself  and  the  defendant;  and, 
as  has  been  said  in  the  cases  supra,  the  defendant 
may  recover  for  the  half-yearly  session,  which 
oi^ght  to  have  been  paid  in  advance  under  its  rules.* 

The  burden  was  upon  the  plaintiff,  in  this  case, 
and  he  has  not  met  same  with  any  evidence  what- 
ever to  sustain  his  contention. 

28 


The  position  contended  for  by  the  defendant  is 
an  important  one,  as  bearing  upon  the  management 
and  control  of  schools,  and  we  respectfully  submit 
that,  upon  the  evidence  in  this  case — even  upon 
plaintiff's  own  testimony — the  Court  was  unques- 
tionably right  in  setting  aside  the  verdict,  upon  the 
grounds  set  forth  in  its  order. 

We,  therefore,  ask  that  the  ruling  be  sustained. 

Respectfully  submitted 

MAXWELL  &  KEERANS,  and 
JNO.  W.  HUTCHINSON 

Attorneys  for  Defendant-Appellee 


29 


